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ELCAllowedELC Misc. Application No. 34 of 2021· [2024] KEELC 3577 (KLR)

George N Kimani & Co Advocates v Mbugua & another (Environment & Land Miscellaneous Case 34 of 2021) [2024] KEELC 3577 (KLR)

High Court of Kenya
11 April 2024
1,777 words in judgment
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The bottom line

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Kenya's High Court moved an advocate's unpaid-fees bill to the Naivasha Environment and Land Court, confirming that where a case is heard matters for convenience and fairness.

What this practically means

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Executive summary

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This ruling by L. A. Omollo, Judge, dated 11th April 2024 at Kericho, determined a Notice of Motion dated 3rd April 2023 brought by G. N. Kimani & Co. Advocates under Sections 3, 3A and 18(1) of the Civil Procedure Act, Section 48 of the Advocates Act and Article 165 of the Constitution. The applicant, an advocate who had represented the respondents in Naivasha ELC No. 56 of 2018, sought transfer of his advocate-client bill of costs filed in ELC Misc. No. 34 of 2021 from the High Court at Nakuru to the High Court at Naivasha for taxation before the Deputy Registrar. He deposed that Naivasha registry officials had declined to accept the bill on the ground that land-related matters were being lodged at Nakuru, which had a High Court Land Deputy Registrar, and that Hon. Rose Ombata in Misc ELC No. 35 of 2021 had observed it was fair that the matter be transferred to Naivasha. The respondents, who filed no response but did file submissions, argued the applicant himself elected to file at Nakuru, that the taxation was awaiting ruling, and that any transfer should be limited to delivery of the taxation ruling. Adopting the criteria in Hangzhou Agrochemicals Industries Ltd v Panda Flowers Ltd, the court noted that the Environment and Land Court at Naivasha had since been gazetted and operationalized, and that the Environment and Land Court is equal in status to the High Court, not a division of it. Finding the transfer convenient and in the interest of justice, the court allowed the application, transferred the file to the Environment and Land Court at Naivasha for placement before its Deputy Registrar for directions and/or taxation, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the advocate-client bill of costs miscellaneous file should be transferred from Nakuru to Naivasha

Holding

The application was allowed; the court found transfer convenient and in the interest of justice, particularly since the Environment and Land Court at Naivasha had been gazetted and operationalized.

Reasoning

The court applied Section 18(1) of the Civil Procedure Act and the criteria in Hangzhou Agrochemicals for transfer applications. It noted the original obstacle - lack of a High Court Land Deputy Registrar/tax master at Naivasha - had fallen away since the Environment and Land Court at Naivasha was gazetted and operationalized. Convenience and the interest of justice favoured transfer, with no prejudice to the respondents, who themselves conceded transfer could be limited to the pending taxation ruling.

p. 4
02

Status of the Environment and Land Court relative to the High Court

Holding

The Environment and Land Court is equal in status to the High Court and is not a division of the High Court.

Reasoning

In correcting the administrative confusion that led to the bill of costs being lodged at Nakuru, the court emphasized that the Environment and Land Court is a superior court of equal status with the High Court, not subordinate to it. This underpinned the order placing the file before the Deputy Registrar of the Environment and Land Court at Naivasha for directions and/or taxation rather than before a High Court Deputy Registrar.

p. 4

Legal principles established

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  • In an application to transfer a suit the court considers the motive and character of the proceedings, the nature of the relief sought, the interest of the litigants, convenience of administration of justice, expense, balance of convenience, interests of justice and possibility of undue hardship; if in doubt, the application must be refused.
  • The Environment and Land Court is a court of equal status to the High Court and not a division of the High Court.
  • Under Article 165(6) and (7) the High Court may refer matters between High Court stations for administrative directions by the Deputy Registrar.

Court orders

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  1. 1.ELC Misc. Application No. 34 of 2021 dated 3rd June, 2021 is transferred to the Environment and Land Court sitting at Naivasha
  2. 2.ELC Misc. Application No. 34 of 2021 shall be placed before the Deputy Registrar, Naivasha Environment and Land Court for directions and/or taxation as circumstances demand
  3. 3.Each party shall bear own costs in respect of the application

Authorities

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Legislation

  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 18(1)
  • Advocates ActSection 48
  • Advocates Remuneration OrderSection 13
  • Constitution of KenyaArticle 165
  • Constitution of KenyaArticle 165(6) and (7)

Cases cited (2)

  • Benson Makori Makworo v Nairobi Metropolitan Services & 2 others
    [2022] eKLR
  • Hangzhou Agrochemicals Industries Ltd V. Panda Flowers Ltd
    (2012) eKLR
Jurisdiction invoked
Sections 3, 3A and 18(1) of the Civil Procedure Act; Section 48 of the Advocates Act; Article 165 of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "George N Kimani & Co Advocates v Mbugua & another (Environment & Land Miscellaneous Case 34 of 2021) [2024] KEELC 3577 (KLR)", Case Analysis (2024). ELC Misc. Application No. 34 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3577/eng@2024-04-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.